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In the Public Interest

The Layers of Terri Schiavo's unfolding Tragedy
March 26, 2005

The Terri Schiavo tragedy unfolds in many layers of controversy. They range from the bitter dispute between her husband, Michael, and her father and mother, Robert and Mary Schindler, all the way to the involvement by the Governor, the Congress, the federal courts and many religious, disability rights and medical organizations.

If the focus is kept on the most just outcome for Terri Schiavo and her family, three issues predominate. Is her condition so beyond any reasonable recovery that she cannot make her own life or death decision?

As of now, the answer is yes. As disability rights lawyer, Harriet McBryde Johnson, herself severely physically disabled, wrote: "If we assume she is unaware and unconscious, we can't justify her death as her preference. She has no preference."

Second, who then should make the decision for her life or death by returning her feeding tube (including water) or withdrawing it? Florida law gives that surrogate right to the spouse, in this case, her husband who is her legal guardian, and not to her biological parents and family.

Third, Michael Schiavo's decision to withdraw the feeding tube from his living wife is based on allegations by his relatives and friends that years ago, his wife, reacting to funerals or the illness of others said she did not want to be kept alive artificially. The judge, George Greer, took these hearsay recollections essentially partisan as meeting the state Supreme Court standard of "clear and convincing evidence."

All the legal appeals eventually come down to these points and the disputes around them over time and changes of circumstances.

The judges have been regularly deciding in favor of Michael Schiavo and against legal challenges by the parents and Terri's siblings, who want to assume the full responsibility of caring for her for the duration.

This is where the little-noticed dissenting opinion by Judge Wilson of the federal circuit court of appeals last week needs to be noticed.

Judge Wilson was making the argument, among others, that if Terri Schiavo's feeding tube is not reinserted while her case was moving through the federal courts, "we virtually guarantee that the merits of Plaintiffs' [essentially her parents on behalf of Terri] will never be litigated in federal court. . . . The merits of Plaintiffs' substantial claims warrant a more complete review."

Judge Wilson was making a broader plea for the application of equitable principles. He wrote: "In considering this extraordinary case, I am mindful that 'the essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.'" (citing Swann v. Charlotte-Mecklenburg Bd. Of Educ. 402 U.S. 1,15 (1971).

Outvoted 2 to 1 in his court and disregarded by the U.S. Supreme Court, Judge Wilson's approach was cast aside in favor of legal rigidities oblivious to equitable claims that could resolve this dispute away from court-ordered death.

The parents, the brother and sister of Terri Schiavo have demonstrated their intense desire to care for Terri. They are now prohibited from even applying a moist sponge to Terri's lips. She has already survived 15 years longer than most people do in her condition. They know that Terri is not terminally ill, is not dependent on life support ventilators, and that her lungs, kidneys, heart and digestive systems are working. But at 41, her life expectancy is not expected to be in the decades.

Her biological family loves her as she is, but they do hold out the small hope that medical science some day may be able to bring her back to a higher level of consciousness. Does a week go by without government, university or corporate scientific researchers, spending tens of billions of taxpayer dollars, hold out such hopes for many dramatic medical cures?

On the other hand, Michael Schiavo has decided, somewhat after the medical malpractice case settled, that Terri would not want to live under such conditions. So he has made the decision to let her expire and the circuit court and appellate courts have approved. He has been for nearly ten years in a common law marriage with a woman who has given birth to their two children. He wants to get on with his life, after years of pressure and anguish.

So why then does he not rise above the acrimony and request from the court to give up his guardian status to Terri's family? Why does Terri need to die? What interest, given the family's desire to care for her, does the government have in ordering a fatal procedure?

For those concerned about cost, it is not a matter of taxpayer's money.

Besides her family, many people around the country would contribute to a trust fund for her care. That is one result the mass media's attention can assure.

The local court could fashion a remedy in equity. The judge could, on petition by the family, decide that Michael Schiavo is conflicted by his relationship with his other partner and shift the guardian status to her parents who then would keep her alive.

The family has made such a request earlier, which he denied. But judges can change their minds when they move to a court of equity. Terri is dehydrating. Time is running out.